State v. Pitts , 2024 Ohio 987 ( 2024 )

[Cite as State v. Pitts, 2024-Ohio-987.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
: Case Nos. CT2023-0050
: CT2023-0043
MARCUS A. PITTS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2023-0130
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED
DATE OF JUDGMENT ENTRY: March 15, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD L. WELCH CHRIS BRIGDON
MUSKINGUM CO. PROSECUTOR 8138 Somerset Road
JOHN CONNOR DEVER Thornville, OH 43076
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702
[Cite as State v. Pitts, 2024-Ohio-987.]
Delaney, P.J.
{¶1} Appellant Marcus A. Pitts appeals from the May 1, 2023 Entry of the
Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
{¶2} The instant appeal is consolidated from two case numbers: 5th District
Morgan Nos. CT2023-0050 and CT2023-0043.
FACTS AND PROCEDURAL HISTORY
{¶3} The following facts are adduced from appellee’s statement at the change-
of-plea and sentencing hearing on April 27, 2023.
{¶4} The Zanesville Police Department received numerous complaints about
drug trafficking at an address on Luck Avenue. Sgt. Wilhite made contact with a
confidential informant (C.I.) who provided information about drug trafficking on three
dates. On February 6, police effectuated a traffic stop and found narcotics determined to
have come from the Luck Avenue address.
{¶5} On February 14, 2023, Probation Officer Matt Cook of the Morgan County
Common Pleas Court went to the Luck Avenue address. Appellant was Cook’s
probationer and on judicial release arising from a felonious assault case in Morgan
County. As a condition of his release, appellant and his residence were subject to search
at any time by members of the Morgan County Court of Common Pleas Probation
Department.
{¶6} When Cook arrived, there were numerous people in the backyard of the
residence. Appellant arrived and they went inside. Cook began his search in appellant’s
bedroom, which contained a small refrigerator. In the freezer compartment, Cook found
[Cite as State v. Pitts, 2024-Ohio-987.]
a makeup bag containing a large amount of U.S. currency and Suboxone strips. Cook
stated he does not have a prescription for Suboxone.
{¶7} Cook continued to search and found a black nylon cinch bag on the floor.
As he started to open it, appellant became very nervous and attempted to back out of the
room. Inside the bag was a gallon-sized Ziploc bag containing a crystalline substance
that appeared to be methamphetamine.
{¶8} Appellant was detained. Cook contacted the Zanesville Police Department
and a search warrant was sought and obtained. Upon execution of the search warrant,
police found $2,478 in U.S. currency in the makeup bag.
{¶9} In the bedroom, police found a purse on the bed containing the Ohio I.D. of
Tiffany Bagley, along with numerous documents in the names of Tiffany Bagley,
appellant, and Timothy Bagley. On top of a shoe rack was an orange and white leather
backpack containing two semi-automatic handguns with loaded magazines and a large
amount of crystal substance residue throughout the bag.
{¶10} In the basement was a kitchen-style island shelf with a bathroom vanity
mirror. On the mirror were writings identified by police as indicators of Real Riders gang
activity. The kitchen island was obviously being used to break down large quantities pf
methamphetamine and prepare them for distribution because there was crystal residue
all over the top of the island.
{¶11} Two sets of digital scales were inside the kitchen vanity. One set had a
plastic drinking cup containing a small amount of crystal substance. The other set of
scales had a metal bowl with residue. Also in the kitchen were a large amount of crystal
residue as well as gallon zip-style plastic bags containing crystal residue.
[Cite as State v. Pitts, 2024-Ohio-987.]
{¶12} On the front of the island was a box of plastic sandwich bags. The bags
were the same brand and style as the bag containing the substance found in appellant’s
bedroom. There were numerous vinyl gloves in the same area, along with a Taco Bell
nametag stating “Tiffany, Assistant Manager.”
{¶13} Found in the trash between the washer and dryer was packaging that, in
the detective’s experience, appeared to be “kilo pound level packaging” typically found in
large-scale distribution of methamphetamine. T. 18.
{¶14} The substance was collected and weighed, yielding more than 300 grams
of methamphetamine.
{¶15} Appellant was charged by indictment with one count of aggravated drug
trafficking pursuant to R.C. 2925.03(A)(2) and (C)(1)(f), a felony of the first degree [Count
I]; one count of aggravated drug possession pursuant to R.C. 2925.11(A) and (C)(1)(c),
a felony of the first degree [Count II]; and two counts of having weapons while under
disability pursuant to R.C. 2923.13(A)(2) and (B), felonies of the third degree [Counts III
and IV]. Count I was accompanied by a major drug offender specification (“M.D.O.”)
pursuant to R.C. 2941.1410(A) and a specification for forfeiture of money in a drug case
pursuant to R.C. 2941.1417(A). Count II is accompanied by a firearm specification
pursuant to R.C. 2941.141(A) and a M.D.O. specification pursuant to R.C. 2941.1410(A).
Counts III and IV are accompanied by firearm specifications pursuant to R.C.
2941.141(A).
{¶16} Appellant entered pleas of not guilty.
{¶17} On April 27, 2023, appellant came before the trial court and changed his
pleas of not guilty to ones of guilty to Counts II and III, both as amended. The guilty plea
[Cite as State v. Pitts, 2024-Ohio-987.]
to Count II includes the M.D.O. specification but not the firearm specification. In exchange
for the guilty pleas, appellee agreed to dismiss Counts I, IV, and the firearm
specifications.1 Appellant agreed to forfeit the firearms seized in the investigation.
Appellee agreed to make no sentencing recommendation at the change-of-plea hearing,
but both parties reserved the right to argue for the sentence they felt was appropriate at
sentencing.
{¶18} The trial court accepted appellant’s guilty pleas and found him guilty.
Appellant waived preparation of a pre-sentence investigation and asked to be sentenced
immediately.
{¶19} The trial court inquired about appellant’s criminal history and was told that
he was presently on judicial release for a felonious assault in Morgan County. In addition
to that offense, appellant had prior convictions for possession of methamphetamine and
heroin; domestic violence; multiple thefts; and multiple convictions for violation of a
protection order.
{¶20} The trial court imposed a stated mandatory minimum prison term of 11
years, a mandatory fine of $10,000, and an indefinite prison term of 16½ years upon
Count II, and a stated prison term of 36 months upon Count III. The sentencing Entry of
the trial court dated May 1, 2023 states the following regarding consecutive sentences:
* * * *.
Provided however the terms of incarceration imposed herein
shall be served mandatory consecutive to one another for an
1
No mention is made of the cash forfeiture specification which accompanied Count I in
the indictment.
[Cite as State v. Pitts, 2024-Ohio-987.]
aggregate prison term of a minimum fourteen (14) years of which
eleven (11) years are mandatory to a maximum indefinite nineteen
and one half (19½) years. Should Morgan County Common Pleas
Court terminate Judicial Release and reimpose the balance of
the sentence in case number 16CR0031, the sentence imposed
herein shall be served consecutively. (Emphasis added).
* * * *.
{¶21} Appellant now appeals from the trial court’s May 1, 2023 Entry of conviction
and sentence.
{¶22} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶23} “I. DID THE TRIAL COURT ERR WHEN SENTENCING THE APPELLANT
TO THE MAXIMUM ALLOWABLE UNDER R.C. 2901.05, IN CONTRAVENTION OF
STATUTE[?]”
{¶24} “II. WAS THE CONSECUTIVE SENTENCE ASSOCIATED WITH
MUSKINGUM COUNTY CASE ORDERED TO RUN CONSECUTIVE WITH ANY
FUTURE SENTENCE IMPOSED BY MORGAN COUNTY UNLAWFUL [sic
throughout][?]”
ANALYSIS
I., II.
{¶25} Appellant’s two assignments of error are related and will be considered
together. He challenges the trial court’s sentence, alleging the record does not support
[Cite as State v. Pitts, 2024-Ohio-987.]
the maximum sentence and the trial court was not authorized to impose a sentence
consecutive to a prospective future prison term imposed by a different court.
{¶26} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to
review the entire trial court record, including any oral or written statements and
presentence investigation reports. R.C. 2953.08(F)(1) through (4). We review felony
sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. R.C. 2953.08(G)(2) provides we
may either increase, reduce, modify, or vacate a sentence and remand for resentencing
where we clearly and convincingly find that either the record does not support the
sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or
2929.20(I), or the sentence is otherwise contrary to law. See, also, State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28.
Maximum sentence
{¶27} A trial court's imposition of a maximum prison term for a felony conviction is
not contrary to law if the sentence is within the statutory range for the offense, and the
court considers both the purposes and principles of felony sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. State v.
Carbaugh, 5th Dist. No. CT2022-0050, 2023-Ohio-1269, 213 N.E.3d 180, ¶ 26, internal
citations omitted. “[N]either R.C. 2929.11 nor 2929.12 require [the] court to make any
specific factual findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729, 169 N.E.3d 649, ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,
951 N.E.2d 381, ¶ 31, and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).
{¶28} In State v. Bryant, the Court clarified,
[Cite as State v. Pitts, 2024-Ohio-987.]
The narrow holding in Jones [163 Ohio St.3d 242, 2020-Ohio-
6729, 169 N.E.3d 649] is that R.C. 2953.08(G)(2) does not allow an
appellate court to modify or vacate a sentence based on its view that
the sentence is not supported by the record under R.C. 2929.11 and
2929.12. See Jones at ¶ 31, 39. Nothing about that holding should
be construed as prohibiting appellate review of a sentence when the
claim is that the sentence was improperly imposed based on
impermissible considerations—i.e., considerations that fall outside
those that are contained in R.C. 2929.11 and 2929.12. Indeed, in
Jones, this court made clear that R.C. 2953.08(G)(2)(b) permits
appellate courts to reverse or modify sentencing decisions that are
“‘otherwise contrary to law.’” Jones at ¶ 32, quoting R.C.
2953.08(G)(2)(b). This court also recognized that “otherwise contrary
to law” means “‘in violation of statute or legal regulations at a given
time.’” Id. at ¶ 34 quoting Black's Law Dictionary 328 (6th Ed.1990).
Accordingly, when a trial court imposes a sentence based on factors
or considerations that are extraneous to those that are permitted by
R.C. 2929.11 and 2929.12, that sentence is contrary to law. Claims
that raise these types of issues are therefore reviewable.
State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198
N.E.3d 68, ¶ 22.
{¶29} In the instant case, on the record at the sentencing hearing, the trial court
stated, “Based upon the facts and circumstances of this case, your record, aggravated
[Cite as State v. Pitts, 2024-Ohio-987.]
possession of drugs, methamphetamine, I’m imposing the minimum prison term of 11
years and the indefinite maximum of 16½ with the mandatory fine of $10,000. And prison
term is mandatory.” T. 28.
{¶30} Appellant waived preparation of a P.S.I. He committed the instant offenses
while on judicial release from a felonious assault conviction in Morgan County and his
criminal history includes numerous felony convictions, including possession of
methamphetamine and heroin. When the trial court asked appellant if he wanted to make
a statement, appellant replied that “this was a young man’s game” and when he got out
of prison he would be in his fifties. T. 23-24. He also claimed he could not find a legitimate
job as a convicted felon. The trial court told appellant this excuse was silly and that he
poisoned the community with his drug trafficking operation. The trial court asked appellant
why he had firearms, and appellant admitted because drug dealers get robbed. T. 26.
Appellant told the trial court he served 18 months out of three years on his Morgan County
conviction. The trial court expressed disbelief that appellant, apparently a bright
individual, chose to engage in drug sales while on judicial release, and described the facts
of the case as “striking.” T. 27-28.
{¶31} Appellant argues generally that the instant case does not represent the
worst form of the offenses charged and that the trial court didn’t address whether he was
likely to commit future crimes. We can easily discern from the record, though, that the
trial court considered the sentencing factors in R.C. 2929.11 and R.C. 2929.12. More
importantly, appellant fails to point to any factors or considerations extraneous to those
permitted by R.C. 2929.11 and 2929.12, that would establish the sentence is contrary to
law.
[Cite as State v. Pitts, 2024-Ohio-987.]
{¶32} We conclude that the trial court did not commit error when it sentenced
appellant to the maximum sentences. Upon review, we find that the trial court's
sentencing on the charges complies with applicable rules and sentencing statutes. While
appellant may disagree with the weight given to these factors by the trial judge, his
sentence was within the applicable statutory range and therefore, we have no basis for
concluding that it is contrary to law. Appellant has not demonstrated that the trial court
imposed the sentence based on impermissible considerations—i.e., considerations that
fall outside those that are contained in R.C. 2929.11 and 2929.12. Carbaugh, supra,
2023-Ohio-1269, 213 N.E.3d 180, ¶ 29 (5th Dist.).
{¶33} Appellant’s first assignment of error is overruled.
Consecutive to future Morgan County prison term
{¶34} In his second assignment of error, appellant argues the trial court was not
authorized to order his sentence to be served consecutive to any future sentence imposed
by the Morgan County Court of Common Pleas, and we agree.
{¶35} R.C. 2929.14(C)(4) addresses consecutive sentences and provides:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender's conduct and
to the danger the offender poses to the public, and if the court also
finds any of the following:
[Cite as State v. Pitts, 2024-Ohio-987.]
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control for
a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses committed
as part of any of the courses of conduct adequately reflects the
seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶36} The trial court must make the R.C. 2929.14(C)(4) findings at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings, nor must it recite certain talismanic words or phrases
in order to be considered to have complied. State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, syllabus.
{¶37} In the instant case, there is no dispute that the trial court made the required
findings to impose consecutive sentences relating to Counts II, III, and the M.D.O.
specification.
[Cite as State v. Pitts, 2024-Ohio-987.]
{¶38} Appellant argues, though, and appellee concedes, no authority permits the
trial court to order the sentence to be served consecutively with any prospective prison
term re-imposed by Morgan County in the felonious assault case for which appellant was
on judicial release. Appellee points out the trial court may have attempted to sentence
appellant pursuant to R.C. 2929.14(C)(1)(e), but that section applies only to offenses
involving fentanyl-related compounds.
{¶39} Because there is no authority for the trial court to order the instant sentence
to be served consecutively with a future potential term imposed by the Morgan County
Court of Common Pleas, we sustain appellant’s second assignment of error, vacate only
the portion of the sentence referring to Morgan County, and remand for resentencing.
CONCLUSION
{¶40} The judgment of the Muskingum County Court of Common Pleas is affirmed
in part, reversed in part, and remanded for resentencing in accord with this opinion.
By: Delaney, P.J.,
Gwin, J. and
Wise, J., concur.